Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIN056111, Michael B. Orfield, Judge.
IRION, J.
Dean Gordon appeals from the judgment entered against him following a bench trial in his lawsuit against Fuller Hein Properties (FHP). Gordon alleged that he entered into a partnership or joint venture agreement with FHP under which he would make payments to FHP to eventually obtain a 50 percent ownership interest in certain real property owned by FHP. Gordon sought, among other things, an order specifically enforcing that agreement.
As we will explain, we conclude that substantial evidence supports the trial court's decision that FHP and Gordon did not enter into a partnership or joint venture agreement that would give Gordon a right to obtain 50 percent ownership in the real property at issue. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. FHP Purchases a Property Containing Two Buildings, and Gordon Renovates One of the Buildings and Moves His Business Into It
Gordon is an agent for State Farm Insurance. Since 1983, his insurance agency has been located in Cardiff-by-the-Sea, California. In mid-1999, Gordon was looking to move his office to another building and noticed that the property at 206 and 210 Birmingham Drive (the Property) was for sale.
The Property was apparently one legal parcel that contained two separate buildings with different street addresses. The building at 210 Birmingham Drive (210 Birmingham) was occupied by Miramar Bobcat, Inc., which is a business owned by Rich Fuller, who is a partner in FHP. The building at 206 Birmingham Drive (206 Birmingham) was vacant, having formerly been the site of a restaurant. Gordon spoke with Fuller about the fact that the Property was for sale and about moving his insurance agency onto the Property.
It is undisputed that in July 1999 FHP purchased the Property for $456,667, with its own funds, free and clear of a mortgage, and took title in its own name. It is also undisputed that Gordon moved his business into 206 Birmingham in November 1999, after spending over $50,000 to renovate the building. He has occupied the building since that time.
Fuller testified that Gordon was not involved in negotiating the purchase.
FHP also contributed to the renovations to 206 Birmingham, paying for the carpeting, tile floor and the air conditioning unit.
B. The Parties Dispute Their Legal Relationship
The parties do not agree on what type of deal they reached, if any, concerning the Property. Gordon testified that at the time he began the renovations on 206 Birmingham, he understood that he "was entering into a partnership to purchase [a] 50-percent interest in both properties." According to Gordon, he and Fuller discussed an arrangement in which Fuller, through FHP, would purchase the Property, after FHP refinanced a different property, and that thereafter Gordon "would be allowed to pay down 50 percent of the purchase price, and once [he] did that, [he] would be given a 50 percent interest into the [P]roperty." Under the deal as Gordon understood it, it would be his responsibility to renovate the building at 206 Birmingham, which his insurance agency would then occupy. Based on his background in construction, Gordon told Fuller that the renovations would cost approximately $50,000. At the time he undertook the renovations, Gordon believed that he "was going to pay somewhere between $2,000 and $2,500 a month," and that with these monthly payments he "was going to pay down [his] half" of the purchase price for the Property, which he understood to be an obligation on his part of $230,000 minus the $50,000 he was spending on the renovations, i.e., $180,000. Gordon also understood that he would pay 10 percent interest to FHP and that his payments on the $180,000 plus interest would be amortized over 20 years, although Gordon also testified that he was not sure whether the parties had agreed on a 15 or 20 year amortization schedule. As Gordon understood the agreement, he could pay off the remaining balance at any time and would then be given a 50 percent interest in both properties.
According to Gordon, he and Fuller also agreed that Gordon was to be responsible for paying the utilities, maintenance and property insurance on 206 Birmingham, and Fuller would be responsible for those expenses for 210 Birmingham.
In his trial brief, Gordon succinctly described his version of the parties' agreement. "[Gordon] and [FHP] orally partnered together to jointly buy, improve, and occupy commercial real property.... FHP would provide the purchase funds, $457,000, and take title in its name. Gordon would invest $50,000 in renovating an abandoned restaurant on the property into usable office space. Gordon would be credited with $50,000 against his one-half of the purchase price. Gordon would pay FHP $2,000 per month toward the purchase price, amortized over 20 years, and when he had paid off his one-half share, FHP would quitclaim an undivided 50% interest in the property to him. Gordon could prepay his half of the purchase price at any time."
Fuller testified to a different understanding of the parties' relationship. According to Fuller, he did not reach an agreement with Gordon about the terms under which Gordon was to occupy 206 Birmingham at the time Gordon undertook the renovations. Fuller testified that before Gordon undertook the renovations, the parties had agreed only that Gordon "was going to remodel that building and move into it" and that their "intent was, hopefully, to put together an agreement for [Gordon] whereby he could eventually purchase that building." Fuller testified that he told Gordon at the outset of their relationship that they "could possibly put something together in the form of an agreement so that [Gordon] could eventually own that building." As Fuller understood it, they were discussing a potential partnership.
After Gordon moved into 206 Birmingham, Gordon began to make monthly payments to FHP in the amount of $2,000, which, according to Fuller, is the amount that the parties agreed on around August or September 1999.
C. Fuller Drafts a Document in December 1999 Relating to the Terms of the Parties' Relationship
Around December 1999, after Gordon had moved into 206 Birmingham, Fuller drafted a one-page document that he gave to Gordon with the heading "Agreement between Dean Gordon and Fuller-Hein Properties" (the December 1999 document). The December 1999 document stated:
"1) Agree to purchase property at 206-210 Birmingham Dr. Cardiff, CA for $456,667.00 plus escrow fees.
"2) [FHP] financed with $50,000.00 down and self funded the balance at 10% interest rate.
"3) Dean Gordon invested $50,000.00 in remodeling and upgrading 206 Birmingham Dr.
"4) Dean Gordon (State Farm Insurance) is to pay $2,000.00 per month for 1350 sq. ft. of 206 Birmingham including property taxes.
"5) Miramar Bobcat, Inc. is to pay $2,000.00 per month to lease 210 Birmingham Dr and 400 sq. ft. of 206 Birmingham Dr. including property taxes.
According to Gordon, the additional square footage at 206 Birmingham was a conference room.
"6) Dean Gordon to pay electric bill at 206 Birmingham Dr. and Miramar Bobcat, Inc. to pay electric bill at 210 Birmingham Dr. and water bill for both locations.
"7) Dean Gordon to provide property insurance for 206 Birmingham Dr. and Miramar Bobcat, Inc. to provide insurance on 210 Birmingham Dr.
"8) Dean Gordon is responsible for mainten[an]ce at 206 Birmingham Dr. and Miramar Bobcat, Inc. is responsible for mainten[an]ce at 210 Birmingham Dr.
"9) Dean Gordon is to have the option to purchase half interest in both properties at anytime for 50% of the amortized mortgage balance.
"10) Attached is amortization schedule based on 10% mortgage.
"11) Attached are leases for State Farm and Miramar Bobcat, Inc.
"12) We need a provision for either party to get out without harm to the other party. There is the possibility of developing this property in the future. If one party wants to do that and the other is not ready. One party decides to get out of business and wants to be bought out?"
According to Gordon, when giving the December 1999 document to him Fuller described it as "re-memorializing our agreement into the purchase of [the Property]." Fuller's testimony, on the other hand, described the December 1999 document as a "bullet point document to start a discussion in creation of an agreement between... Gordon and [FHP]." Fuller testified that at the time he created the December 1999 document, he "intended to start working on an agreement of a partnership."
The December 1999 document did not include signature lines, and it was not signed by any party. Contrary to what the December 1999 document stated, there was no amortization schedule attached, and Fuller testified that he never prepared one. There was also no lease attached, although Gordon testified that Fuller provided him a blank lease form.
According to Gordon, when Fuller gave him the December 1999 document, Fuller told Gordon to review it and get back to him. Fuller testified that Gordon never responded to him after reviewing the December 1999 document. Fuller did not follow up with Gordon concerning the December 1999 document, and he was not concerned that the parties did not have a written agreement as he was receiving payments from Gordon each month. As Fuller understood the parties' relationship, Gordon was occupying 206 Birmingham and paying rent with "the intent of doing a partnership at one point in time in the future."
Meanwhile, the monthly amount that Gordon paid to FHP increased from $2,000 to $2,300 at some point during the year 2000. According to Fuller, the monthly payment increased because Fuller stopped using the conference room in 206 Birmingham and was contemplating leasing that room to another tenant. As Fuller testified, Gordon stated that rather than having another tenant share 206 Birmingham, Gordon would pay $2,300 per month for use of the entire building.
D. The Relationship Between Fuller and Gordon Deteriorates
The personal relationship between Gordon and Fuller deteriorated late in the year 2000. Gordon had hired Fuller's son to do some of the construction work during the renovations and had sold a used truck to him. A dispute arose between Gordon and Fuller about whether Gordon had paid Fuller's son the full amount owed for his work and about the amount Fuller's son still owed Gordon for the truck. According to Fuller, in approximately November 2000, Gordon "boldly lied" to him about whether he had paid Fuller's son in cash for his work. Fuller testified that shortly after that event, he told Gordon that he did not want to be partners with him. Fuller testified, "Honestly, after Mr. Gordon lied to me, I wanted nothing to do with him.... I was thankful that I had not consummated a partnership." However, Fuller did not evict Gordon from 206 Birmingham because he "didn't think that would be fair." Fuller also did not have Gordon enter into a written lease because he "wanted nothing to do" with Gordon, including signing a lease. After their relationship soured, Fuller "made it a point not to talk to [Gordon]."
Gordon, in contrast, claimed that the first time that Fuller told him that he did not want to be his partner was in 2003. According to Fuller, Gordon approached him in 2003 to inquire about the balance of the mortgage, and Fuller told Gordon that he did not have a mortgage and reiterated that they did not have a partnership.
Gordon continued to occupy 206 Birmingham and made payments of $2,300 per month to FHP until April 2003, when he started paying $2,500 per month. Fuller testified that he believed Gordon started paying $2,500 because Gordon wanted exclusive use of the conference room in 206 Birmingham, which he was previously sharing with Fuller, but, as he avoided talking to Gordon, Fuller did not know the actual reason for the increase in the amount of Gordon's payments. After January 2002, on most of his monthly checks to FHP, Gordon included a notation indicating that the check represented a "mortgage" payment. Fuller did not complain to Gordon about the notation, and simply regarded it as "foolishness."
It is undisputed that since buying the Property, FHP has paid the property taxes and the water bill. Gordon has paid all of the electric bills for 206 Birmingham since he moved in and has provided property insurance for that building.
At some point Gordon suggested looking into splitting the Property into two lots, and Fuller authorized Gordon to explore that possibility. With Fuller's knowledge, Gordon had the Property surveyed for that purpose in 2005, but determined that the city would have to agree to a variance before the lots could be split.
E. Gordon Attempts to Make Payments to FHP to Obtain 50 Percent Ownership in the Property
On June 26, 2006, Gordon delivered Fuller a letter stating that he would like to set up a meeting with Fuller and that he wanted to pay off his remaining mortgage balance to obtain his 50 percent ownership in the Property. On June 30, 2006, Gordon delivered a letter to Fuller enclosing a check for $87,325.35, which was Gordon's calculation of how much he would have to pay to obtain a 50 percent interest in the Property. The check bore the notation "Final Payoff 206 & 210 Birmingham Dr." Fuller did not accept the check and sent it back to Gordon. Gordon replied in a letter stating that he had opened an escrow for transfer of ownership of the Property. Fuller then sent a notice to Gordon on July 14, 2006, stating that a forfeiture of Gordon's lease would occur if Gordon did not pay $4,600 in rent for the months of June and July 2006. In response, Gordon sent FHP a check for $5,000 with the notation "206 & 210 Birmingham Dr. June & July 2006 Mortgage."
In November 2006, apparently after this litigation already had been filed by Gordon, Fuller sent Gordon another notice of overdue rent in the amount of $4,600 for October and November 2006. Gordon responded by sending FHP a check for $2,300, with the notation "206 & 210 Birmingham Dr. Mortgage — Principal Reduction" and another check for $75,025.35, with the notation "Final Payoff — 206 & 210 Birmingham Dr." FHP accepted the check for $2,300 but apparently returned the other one. Gordon has made no further payments to FHP.
Gordon admits that he did not have sufficient funds in the bank to cover either the $75,025.35 or the $87,325.35 checks. He was planning to get a bridge loan to cover the amount and was considering using his eventual interest in the Property as collateral. The person who was going to make the bridge loan explained during his trial testimony that the availability of the bridge loan assumed that Gordon would be receiving a grant deed with respect to 206 Birmingham, and that 210 Birmingham was a separate lot.
F. The Litigation Between Gordon and FHP
Gordon filed this action against FHP in October 2006 and also recorded a lis pendens on the Property. FHP answered the complaint, and the action proceeded to trial on the following causes of action: (1) specific performance, in which Gordon sought an order requiring FHP to accept payment of "50% of the amortized original mortgage balance" and execute a deed giving Gordon a 50% ownership of the Property as a tenant in common; (2) quiet title, in which Gordon sought an adjudication that he and FHP own the Property as tenants in common, each holding an undivided one-half interest; (3) dissolution of partnership and an accounting; (4) declaratory relief as to the parties' duties under their alleged partnership agreement; (5) violation of Business and Professions Code section 17200 et seq. for "unfair, illegal and fraudulent conduct," in which Gordon sought a permanent injunction requiring FHP to give a him 50 percent interest in the Property; and (6) unjust enrichment.
At the conclusion of trial, counsel for Gordon clarified that the only three causes of action on which Gordon was seeking relief were the causes of action for (1) declaratory relief, (2) specific performance, and (3) dissolution of the partnership and an accounting. As counsel for Gordon summed it up to the trial court, Gordon was seeking (1) a declaration that a partnership exists between FHP and Gordon and (2) an order of specific performance requiring the parties to conduct themselves in conformance with the partnership agreement. In the alternative, if the trial court chose not to order the parties to specifically perform the partnership agreement, Gordon sought a dissolution of the partnership and an accounting.
After holding a four-day bench trial, at which both Fuller and Gordon testified at length, the trial court ruled in favor of FHP. In its statement of decision, the trial court closely reviewed the text of the December 1999 document and the history of the parties' conduct to reach its finding that the parties had not entered into a partnership. The trial court found that "no partnership was ever created" and instead "a month to month tenancy at will has been created by the conduct of the parties." The trial court also found that the December 1999 document was "nothing more than a proposal, a starting point for the effecting of a future agreement." It concluded that there was no "agreement of any kind regarding Gordon's ownership interest in the [P]roperty." At the hearing regarding Gordon's objections to the trial court's tentative statement of decision, the trial court clarified that it had concluded that Gordon and FHP had not entered into a partnership or any other kind of business association, such as a joint venture.
In addition, the trial court expressly considered the theory of unjust enrichment as a possible basis for ruling in favor of Gordon but rejected it because "on whole [Gordon] has obtained greater benefit than the $60,000 originally spent on the property." Indeed, the undisputed evidence at trial was that Gordon had been paying far below market rent for 206 Birmingham. Gordon's own expert opined that Gordon was paying "[p]robably less than half of market value eight or nine years ago... and probably less than a quarter of market value in today's rates." On appeal, Gordon does not attempt to challenge the trial court's exercise of its discretion to deny equitable relief under a theory of unjust enrichment.
Gordon objected to the trial court's statement of decision on the ground that it "reference[d] only 'partnership' and not other possible forms of association" such as a joint venture. (Capitalization omitted.) At the hearing on Gordon's objections, the trial court explained that by finding that only a month-to-month tenancy at will was created, it had implicitly considered other types of associations and had rejected them. It stated, "Coming to the conclusion that this was a tenancy at will, I've indicated that no agreement by any theory was effected.... I explored... whether some other relationship existed and I didn't find any."
Gordon appeals from the judgment.
II
DISCUSSION
A. Standard of Review
In deciding that the parties did not enter into a partnership or a joint venture, the trial court was deciding a question of fact. (Bank of California v. Connolly (1973) 36 Cal.App.3d 350, 364 (Connolly) ["Whether a partnership or joint venture exists is primarily a factual question to be determined by the trier of fact from the evidence and inferences to be drawn therefrom."].) We review the trial court's factual findings under the deferential substantial evidence standard of review. (Scottsdale Ins. Co. v. Essex Ins. Co. (2002) 98 Cal.App.4th 86, 92.) Substantial evidence is defined as evidence of " ' " ' " 'ponderable legal significance... reasonable in nature, credible, and of solid value [, and]' " '... ' "relevant evidence that a reasonable mind might accept as adequate to support a conclusion" '...." ' " (Young v. Gannon (2002) 97 Cal.App.4th 209, 225.) We review the record as a whole, resolving all conflicts in favor of the prevailing party and indulging all legitimate and reasonable inferences in favor of the trial court's findings. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) If the trial court's findings are supported by substantial evidence, contradicted or uncontradicted, the judgment must be upheld regardless of whether the evidence is subject to more than one interpretation. (Ibid.)
B. Substantial Evidence Supports the Trial Court's Finding that the Parties Did Not Form a Partnership or Joint Venture
According to the Uniform Partnership Act, an agreement to form a general partnership may be "written, oral, or implied." (Corp. Code, § 16101, subd. (10); see also Weiner v. Fleischman (1991) 54 Cal.3d 476, 482-483 ["A joint venture or partnership may be formed orally [citations], or 'assumed to have been organized from a reasonable deduction from the acts and declarations of the parties.' "].)
Gordon contends that he and FHP entered into an oral partnership at the time he began renovations on 206 Birmingham and that the December 1999 document provides evidence of that oral partnership. Gordon argues that "[c]onsidering the terms of the oral agreement here, as evidenced by the writing, and the conduct and activities of the Parties in carrying on the partnership, the conclusion is clear that a partnership existed." He asserts that "looking to the writing and the parties' conduct as a whole..., the conclusion is inescapable that a partnership existed." According to Gordon, we should reverse the judgment because substantial evidence does not support the trial court's finding to the contrary.
Gordon contends that his position was always that the parties entered into an oral partnership agreement, but that "it is clear that the trial court was focusing not on whether an oral agreement was formed but whether a written agreement of partnership was reached." (Italics added.) Gordon misreads the trial court's statement of decision. The trial court did not focus on whether a written agreement of partnership was reached. Instead, it considered all of the evidence before it, including both the content of the December 1999 document and the parties' conduct to determine whether the parties entered into any type of partnership agreement, written or oral, or any other kind of association.
With certain statutory exceptions, a partnership is defined as "the association of two or more persons to carry on as coowners a business for profit." (Corp. Code, § 16202, subd. (a).) However, as relevant here, "[j]oint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not by itself establish a partnership...." (Id., subd. (c)(1).)
The definition of a joint venture also is applicable here because Gordon contends that if the parties did not form a partnership, they at least entered into a joint venture. The law does not make a sharp definitional distinction between joint ventures and general partnerships. As Witkin explains, "the incidents of both relationships are in all important respects the same, and the courts freely apply the provisions of the Uniform Partnership Act and general partnership law" to joint ventures. (9 Witkin, Summary of Cal. Law (10th ed. 2005) Partnership, § 9, p. 584.) "Although a partnership ordinarily involves a continuing business, whereas a joint venture is usually formed for a specific transaction or a single series of transactions, the incidents of both relationships are the same in all essential respects. [Citation.] A joint venture exists where there is an 'agreement between the parties under which they have a community of interest, that is, a joint interest, in a common business undertaking, an understanding as to the sharing of profits and losses, and a right of joint control.' " (Connolly, supra, 36 Cal.App.3d at p. 364.)
Further, the "[r]ights and liabilities of joint venturers, as between themselves, are governed by the same principles which apply to a partnership." (Connolly, supra, 36 Cal.App.3d at p. 371.)
In determining whether either type of business association was formed, "[a]n essential element of a partnership or joint venture is the right of joint participation in the management and control of the business. [Citation.] Absent such right, the mere fact that one party is to receive benefits in consideration of services rendered or for capital contribution does not, as a matter of law, make him a partner or joint venturer." (Connolly, supra, 36 Cal.App.3d at p. 364.)
As we will explain, substantial evidence supports the trial court's finding that the parties never came to any definitive agreement about the terms of their relationship, and thus never entered into a partnership or a joint venture.
FHP argues, among other things, that the parties' agreement was not specific enough to constitute an enforceable agreement. While it is true that (1) "[w]here a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable" (Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481) and (2) "[t]o be enforceable, a promise must be definite enough that a court can determine the scope of the duty and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages" (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770), there is a more fundamental problem with Gordon's case. Specifically, the trial court made a finding, supported by substantial evidence, that the parties simply failed to reach any agreement as to the nature of their ongoing relationship, not merely that they reached an agreement that was not sufficiently specific to be enforceable.
One source of support for the trial court's finding that the parties never entered into an agreement to form a partnership or a joint venture is Fuller's testimony about the parties' dealings when Gordon first moved into 206 Birmingham. Fuller testified that the only agreement the parties had discussed at that time was that Gordon "was going to remodel that building and move into it." According to Fuller, he told Gordon that they "could possibly put something together in the form of an agreement so that [Gordon] could eventually own that building," but that the parties only discussed a potential partnership. The trial court, as the finder of fact, was entitled to credit Fuller's testimony over Gordon's, and thus to find that, contrary to Gordon's assertion, the parties' discussion never advanced to a meeting of the minds and the formation of a partnership agreement. (People v. Smith (2005) 37 Cal.4th 733, 739 [It " ' "is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends" ' "].)
Further, substantial evidence supports a finding that, contrary to Gordon's position, the December 1999 document did not memorialize an already completed oral partnership agreement. The undisputed evidence is that both Fuller and Gordon understood that Gordon was to review the December 1999 document and then respond to Fuller. However, Gordon never did so.
The many incomplete aspects of the December 1999 document also lend support to a finding that the parties were not attempting through that document to memorialize an agreement that had already been reached. First, the December 1999 document states that leases are attached, but no such leases were in fact attached, and Gordon never entered into any written lease. Second, the December 1999 document references an amortization schedule, but it is undisputed that no such schedule was attached or created by the parties. Indeed, the first time that Gordon attempted to present Fuller with an amortization schedule was in the year 2006 when he sought to pay the amount he believed was required to obtain a 50 percent ownership in the Property. Third, the December 1999 document expressly states that the parties need to arrive at a provision for how to handle a situation where one of them would want to exit the business. That statement, too, supports a finding that the parties were still working out the terms of their relationship, rather than simply memorializing a previous oral partnership or joint venture agreement.
Gordon focuses on the trial court's discussion of one of the items in the December 1999 document. Referring to paragraph 9 of the December 1999 document, which states that "Dean Gordon is to have the option to purchase half interest in both properties at anytime for 50% of the amortized mortgage balance," the trial court stated: "What is so important to the Court is that Dean Gordon was given an option to purchase at a later time, not a then current one-half interest in the property, which at the purchase price, would be an instantaneous 1/2 interest worth about $230,000. Nothing in the evidence suggests that that situation occurred or was ever contemplated." As we read this statement, the trial court was explaining its conclusion that Gordon could not, under the terms of the December 1999 document, currently possess an interest in 50 percent of the Property. Contrary to Gordon's argument, there is nothing about the trial court's observation that calls into question the evidentiary support for its finding that the parties never entered into an oral partnership or joint venture agreement.
The parties' dealings after December 1999 also lend substantial evidentiary support to a finding that the parties did not enter into an oral partnership or joint venture. According to Fuller's testimony, which the trial court was entitled to credit, Fuller told Gordon in approximately November 2000 that he did not want to be partners with him. After that point, according to Fuller, he and Gordon had very little to do with each other, and Fuller "made it a point not to talk to [Gordon]." Aside from isolated conversations, the substance of Fuller and Gordon's interactions from late 2000 to 2006 appear to have been Gordon's act of sending monthly payments to FHP. Substantial evidence supports a finding that such a relationship is not indicative of a partnership or a joint venture because it does not consist of "two or more persons [carrying on] as coowners a business for profit" (Corp. Code, § 16202, subd. (a)) or a " 'common business undertaking.' " (Connolly, supra, 36 Cal.App.3d at p. 364.) With the parties not speaking to each other and Gordon doing nothing more than sending a monthly check to FHP and paying for his own utilities and property insurance, there is no indication of any "right of joint participation in the management and control of the business" that is necessary for the formation of a general partnership or a joint venture. (Ibid.) The trial court reasonably concluded that such a relationship constituted nothing more than a month-to-month tenancy.
Significantly, also, there was no sharing between the parties of the rent monies from the Property collected by FHP. In addition, during the period when the Property was purchased, Gordon did not participate in the negotiations for the purchase of the Property and was not consulted by FHP about the purchase price. FHP took all depreciation deductions on the property.
For the first time in his appellate briefing, Gordon seems to claim that he entered into two separate agreements with FHP, i.e., one constituting a partnership and one giving him the option to purchase a 50 percent interest in the Property. However, at trial Gordon testified to the existence of only a single agreement, the terms of which were that FHP would purchase the property, Gordon would spend $50,000 to renovate 206 Birmingham and make monthly payments to FHP, all of which would go toward the "mortgage" that was funded by FHP, and which Gordon could elect to pay off in full at anytime to obtain a 50 percent ownership interest in the Property. In light of the absence of any mention of two separate agreements in Gordon's trial testimony, the record does not contain substantial evidence to support a finding in favor of Gordon on that subject. Further, we decline to consider an argument asserted for the first time on appeal. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117 [rejecting grounds for relief advanced for the first time on appeal because "[i]t is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal."].)
In sum, with support from the substantial evidence in the record, the trial court properly concluded that the parties reached only the preliminary stages of discussing a formal business association, and that after the parties' relationship soured in late 2000, they dropped their plans to form a partnership or joint venture and instead maintained a relationship that amounted to nothing more than a tenancy at will. There is ample evidence in the record to support a finding that the parties never came to a meeting of the minds regarding the formation of either a partnership or a joint venture.
Gordon spends a substantial portion of his appellate briefing arguing that the statute of frauds does not prevent the enforcement of his option to purchase a 50 percent interest in the Property. However, the trial court did not rely on the statute of frauds as a basis for its decision. Indeed, the trial court explained that "[i]f the Court had found that a partnership agreement was created, it would not have violated the Statute of Frauds." Our decision also does not turn on whether or not the statute of frauds applies, and we accordingly need not, and do not, reach the issue.
DISPOSITION
The judgment is affirmed. Fuller Hein Properties is awarded costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.